State, energy firm square off in court over nuclear plant’s fate

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Vermont Yankee’s 40-year license expires on March 21. The plant’s reactors are similar to those in Japan that were severely damaged during the earthquake and tsunami.

By Dave GramAssociated Press
September 12, 2011

BRATTLEBORO - A federal judge is about to be asked to take a first crack at this question: In early 21st-century America, can a small state tell an $11.2 billion corporation to pack up its nuclear plant and go home?

This morning, in a stately federal courtroom upstairs from a post office - in a town still recovering from the floods two weeks ago of Tropical Storm Irene - a high-powered Entergy Corp. legal team will square off against the Vermont attorney general’s office with that question in the balance.

Judge J. Garvan Murtha will hear opening arguments in what is expected to be a three-day trial. At issue is whether the Entergy-owned Vermont Yankee nuclear plant, just a few miles south of the courtroom in neighboring Vernon, should be allowed to operate past next March 21, when its initial 40-year license expires.

The Nuclear Regulatory Commission has said yes. Just 10 days after an earthquake and tsunami triggered meltdowns at a plant in Japan - reactors of the same design and about the same age as Vermont Yankee - the NRC said Vermont’s lone nuclear station had passed its review and was fit for a 20-year license extension, lasting until 2032.

The state of Vermont has said no. The state passed a law in 2006 saying that before a nuclear plant could get permission from regulators to keep operating, both houses of the Legislature had to approve. The state Senate voted, 26-4, in 2010 against continued operation.

New Orleans-based Entergy filed suit in April, saying the state is preempted by the federal Atomic Energy Act from trying to shut Vermont Yankee down. Whichever side loses is almost certain to appeal, so a resolution could take years.

The judge in July denied Entergy’s request for a preliminary injunction allowing Vermont Yankee to continue operating while the lawsuit works its way through the courts. But in a nod to the company’s plea for a quick answer about the plant’s future, he set an unusually early date for the full trial.

The case is drawing national attention from supporters and critics of nuclear power.

“We are paying attention to it because we are concerned about our 650 energy-industry colleagues at the site,’’ said Tom Kauffman, spokesman for the industry group Nuclear Energy Institute, of the job losses if the plant closes. “We are also concerned about the citizens of Vermont’’ and their need for a large source of low-carbon electrical generation, he said.

Diane Curran, a Washington-based lawyer who has represented several antinuclear groups, said more states should be exercising more oversight over nuclear power plants.

“To me there’s an overarching question about whether in today’s era there should be any debate about whether states should have a lot more control about nuclear plants within their borders,’’ she said.

A big question hanging over the case is why Vermont wants its only reactor shut down. Entergy has charged that Vermont’s main concern is about nuclear safety, something a 1983 US Supreme Court decision said was solely the province of the NRC.

Vermont’s lawyers denied during the preliminary injunction hearings that the issue was safety. Instead they said it was “reliability’’: Will the plant operate well and provide a stable supply of electricity to the state?

But others see two problems with that. First, the plant is reliable by industry standards, Kaufmann said. Second, Vermont Yankee and the state’s electric utilities have been unable to agree on a contract for the utilities to buy power from the plant after next March. If all the power is sold out of state, as is probable if the plant keeps operating, Vermont’s concern about reliability would be rendered moot.

Overall, the state hasn’t provided a clear reason for shutting the plant down, said Patrick Parenteau, a professor at the Vermont Law School and former state environmental commissioner. “That may be the state’s chief vulnerability’’ in the case, he said. The judge is probably “looking for a real crisp explanation that he can say, ‘I may not agree with it, but I’ll defer to it, I’ll accept it.’ ’’

Vermont has always been closely divided on the question of nuclear power. Steve Terry, a former Vermont journalist who went on to serve as vice president at Green Mountain Power Corp., said it was a close vote in the State House in 1966 that decided on a nuclear plant versus a huge deal to import Canadian power.

In recent years, nuclear opponents have been in the ascendancy, occupying key spots in state government. Governor Peter Shumlin, when he was Senate president, orchestrated the vote to close the plant a month after it was revealed that radioactive tritium was leaking into soil and water around the reactor and that plant officials had made misstatements by denying that the plant had underground pipes that carried tritium.